Cooperation 101 Posted By Daniel Kaiser, Esq. on February 21, 2011
Academics have rattled on about cooperation in discovery for years now. It’s a principal that, if it works, could make life easier for counsel and cheaper for the client. If cooperation is in everyone’s best interest and Sedona principles are popular, why can’t we all just…get along?
Steven Bennett’s recent NYSBA Journal article, “How can Courts Encourage Cooperation in Discovery?” takes a run through several factors that discourage cooperation between parties and suggests several approaches that should be taken by federal courts to encourage the process. A sampling of Bennett’s suggested incentives includes:
- Requiring Competence – There have been conversations we’ve had with counsel revealing that, surprising or not, often the individual making decisions regarding data handling and processing specifications does not have a handle on their own client’s information systems and record keeping infrastructure. It’s easy to imagine that this lack of knowledge hampers conversations between opposing counsel to the same extent. Bennett recommends that the courts identify certain essential points of competence and require counsel to be up to speed in those points throughout the discovery process.
- A Settlement Privilege – Will we ever be able to get away from calculated exchanges based on game theory? Not likely, if every word or move enacted during discovery provides the basis of a further court submission. Here, Bennett recommends that courts create a limited settlement privilege applicable to certain stages of discovery negotiations (such as communications in pursuit of the finalization of search term lists).
- Supervised Negotiations – One example Bennett points out would be a mandatory mediation rule for all discovery motions.
- Giving Examples – Writing judicial opinions including positive examples of discovery negotiations done well.
- Creating the Ethos – By naming and praising attorneys in their opinions for good behavior, or by promoting awards, courts can incentivize cooperation in discovery.
One interesting note: all of Bennett’s suggestions center around action taken by the courts. The Sedona Conference is certainly the important thought leader in this arena, but in reality it’s likely to be the court and the court’s authority that has the influence to tell parties to cooperate—or else.
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